MEMORANDUM OPINION
This suit сhallenges a 2004 regulation promulgated by the Office of Foreign As
BACKGROUND
Beginning in 1963, and continuing to the present day, the United States government has restricted travel to Cuba by persons subject to U.S. jurisdiction as part of a broad trade embargo against Cuba under the Trading with the Enemy Act (“TWEA”), 50 U.S.CApp. § 5(b), and the Cuban Assets Control Regulations (“CACR”), 31 C.F.R. Part 515, which ban nearly all economic transactions with Cuban nationals.^ The stated purpose of the CACR is to “isolate the Cuban government economically and deprive it of U.S. dollars.” Office of Foreign Assets Control, U.S. Dep’t of Treasury, What You Need To Know About The U.S. Embargo: An Overview of the Cuban Assets Control Regulations 1 (2004), http://www.treas. gov/offices/enforcement/ofac/programs/ cuba/cuba.pdf. OFAC is the office within Treasury responsible for implementing the CACR. (See 1 st Am. Compl. ¶ 11.) The exact сontours of the travel restrictions have changed over time, but in their current form the CACR permit limited categories of people — including certain types of journalists and academic researchers— to travel to Cuba under general licenses without obtaining prior approval from OFAC. See 31 C.F.R. §§ 515.560(a), 515.563(a), 515.564(a). All others seeking to travel to Cuba must first obtain a specific license from OFAC. Id. § 515.60(a). Specific licenses are available on a case-by-case basis for purposes such as family visits, humanitarian projects, and religious and educational activities. Id. Since 1999, accredited U.S. academic institutions have been able to obtain specific licenses under § 515.565 of the CACR to permit their students and employees to participate in specified educational activities in Cuba, including “structured educational program[s]” offered by U.S. collegеs and universities in Cuba. Id. § 515.565.
At issue in this case are several 2004 amendments to § 515.565 that further restricted the availability of specific licenses for the structured educational programs that U.S. academic institutions may offer in Cuba.
(Id.
¶ 19.) Prior to 2004 there was no durational requirement for educational travel to Cuba, but under § 515.565 as amended, educational programs conducted by U.S. schools in Cuba must last at least ten weeks. 31 C.F.R. § 515.565(a)(1). The 2004 amendments also require that any student using an institution’s license for educational travel to Cuba be enrolled in an undergraduate or graduate degree program at that institution.
Id.
§ 515.565(a). In addition, plaintiffs claim that the 2004 amendment
The new rules implemented recommendations contained in a report by the Commission for Assistance to a Free Cuba, an interagency commission formed by President Bush in 2003 and tasked with exploring how the United States could best “[bjring about a peaceful, near-term end” to the Castro dictatorship. See U.S. Dep’t of State, Mission and Members of Commission for Assistance to a Free Cuba, http:// www.state.gov/p/wha/rt/cuba/cl2238.htm (last visited July 26, 2007). (1st Am. Compilé 21-25.) The Commission concluded that the educational travel provisions of the CACR were being abused by some travelers and educational institutions as “disguised tourism.” (A.R. at 63 [Commission for Assistance to a Free Cuba, Report to the President(2004)].) In particular, the report cited short-term “study-tour programs” offered by U.S. institutions, open to students not enrolled at the institution, which often included “lengthy unscheduled time periods to permit largely tourist activities to be accomplished.” (Id.) Emphasizing the importance of depriving the Castro regime of U.S. revenues from tourism, the Commission recommended the new educational travel restrictions as a means of “foster[ing] genuine academic study in Cuba” and curtailing the abuses of study-tour programs. (Id. at 61-63, 65.)
Plaintiff Emergency Coalition to Defend Educational Travel (“ECDET”) is an organization of higher education professionals affiliated with U.S. colleges and universities. (1st Am.ComplJ 4.) It was formed in response to the 2004 CACR amendments, and its stated purpose is to “defend the freedom of U.S. professors and students to design, teach, and attend courses in Cuba free of U.S. government diktat.” (Pis.’ Opp’n at 3.) Plaintiff Wayne Smith is the Chairman of ECDET and an adjunct professor of Latin American Studies at Johns Hopkins University. (1st Am. ComplJ 5.) He serves as the Director of Johns Hopkins’ Cuban Exchange Program, and in every year from 1997 to 2004, he taught inter-session courses in Cuba of two- to three-weeks duration. (Id.; Smith Decl. ¶¶ 1, 7.) Smith claims that as a result of the 2004 amendments, Johns Hopkins was forced to cancel all of its Cuban Exchange programs, and he is therefore no longer able to teach in Cuba. (Smith Decl. ¶¶ 8, 9.) Plaintiff John Cotman is an associate professor of Political Science at Howard University. His academic specialties are comparative politics and international relations of the Caribbean, and he has conducted extensive research on Cuba’s foreign relations. (1st Am.ComplJ 6.)
Plaintiffs Jessica Kamen and Adnan Ahmad were, at least at the time this lawsuit was filed, undergraduate students at Johns Hopkins.
(Id.
¶¶ 7, 8.) They both expected to graduate in 2007.
1
(Id.)
Plaintiff Abby
According to plaintiffs, the 2004 amendments to the CACR have led to the “almost unanimous decision of U.S. colleges and universities to end their academic programs in Cuba.” (Pis.’ Opp’n at 25.) Prior to 2004, college students could attend educational programs in Cuba conducted by other universities and receive course credit at their own institutions towards their degrees. (See id. at 4-5.) This permitted a school to be able to finance a Cuba program by servicing interested students from other schools, even if there was not enough interest among its own undergraduate students to support such programs. Plaintiffs argue that the new requirement that only students of the school that runs the program may attend makes offering study abroad programs in Cuba economically infeasible for almost every school. (Id. at 5.) Plaintiffs also argue that most American college students are not able to attend ten-week programs in Cuba if they hope to graduate “on time.” (Id. at 5; Smith Deck ¶ 8.)
Plaintiffs claim that the 2004 amendments to the CACR educational travel provisions unconstitutionally violate their First Amendment right of “academic freedom” and their Fifth Amendment right to travel internationally. (1st Am. Compl. ¶¶ 34, 36; Pis.’ Opp’n at 41-42.) They also argue that the amendments violate the APA because they are “in direct contravention of the intention of Congress;” are arbitrary and capricious; and are not rationally related to the purpose of the TWEA. (1st Am.Compl.1ffl 31, 32.) Defendants argue that each of these plaintiffs lacks standing to challenge the amendments; that the amendments are a reasonable interpretation of TWEA under the APA and well within the Executive’s inherent authority in the realm of foreign affairs; and that plaintiffs have not been deprived of their First or Fifth Amendment rights.
ANALYSIS
I. Standing
To meet the requirements fоr Article III standing, a plaintiff bears the burden of showing that: (1) he or she has suffered an injury-in-fact which is (i) concrete and particularized, and (ii) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between
Where the plaintiff is an association seeking to sue on behalf of its members, “that plaintiff must demonstrate that (1) at least one of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit.”
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,
Defendants advance two main arguments in support of their claim that plaintiffs lack standing under Article III:(1) none of the plaintiffs has established an injury-in-fact that is actual or imminent, and (2) even assuming an injury, because the decision to conduct academic programs in Cuba rests with the academic institutions, as opposed to the professors or students, plaintiffs have failed to demonstrate how a favorable judicial decision on the merits of their claims would redress their injuries. (Defs.’ Mem. at 19, 22.) Defendants do not contest that plaintiffs can meet the causation prong of the standing inquiry. (Defs.’ Reply at 7.)
A. Injury-in-Fact
Injury-in-fact is the “invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”
Lujan,
Under
Lujan,
it is clear that plaintiffs Cotman, Ahmad, and Kamen have not
Nor do plaintiffs Kamen and Ahmad allege any specific plans or concrete opportunities to attend an academic program in Cuba. Ahmad avers that he once previously participated in a two-week winter-session program in Cuba offered by Johns Hopkins, and that “[a]s a result of the OFAC rulemaking challenged in this action” and the cancellation of Johns Hopkins’ Cuba programs, “[he] cannot develop further [his] academic interests in Cuba through further study there.” (Ahmad Deck ¶¶ 1, 2.) He states that “[i]f OFAC had not effectively abolished Johns Hopkins’ courses in Cuba [he] certainly would have studied there again”
(id.
¶ 3), but he fails to explain how he could have done so given the fact that he appears to have graduated from Johns Hopkins this past spring.
3
Kamen declares that “[i]n the spring of 2006[she] inquired as to what courses in Cuba are offered by Johns Hopkins,” and was “told that the University cancelled all of its programs in Cuba as a result of the OFAC rulemaking....” (Ka-men Decl. ¶ 2.) Like Ahmad, she states in conclusory fashion that “[i]f not for the OFAC rule changes that terminated Johns Hopkins’ courses in Cuba, [she] certainly would have studied there.”
(Id.
¶ 2.) These (presumably former) students do not allege that they planned to enroll in any particular course in Cuba at any particular time, and plaintiffs present no evidence to indicate that these students would have even been granted admission into any course in Cuba offered by Johns Hopkins.
4
Cotman, Ahmad and Kamen’s general desires and uncertain future plans to participate in academic programs in Cuba, without more, are precisely the type of “some dаy” intentions that the Lujan Court held did not support a finding of a concrete and particularized and actual or imminent injury. Therefore, these three plaintiffs have failed to establish Article III standing.
Plaintiffs Smith and Wakefield, however, have arguably alleged sufficient facts to meet their burden under Lujan. In his declaration, Professor Smith states that from 1997 until they “were prevented from doing so by OF AC’s 2004 amendments to 31 C.F.R. § 515.565,” he and another professor took fifteen to twenty students per year to Cuba on three-week inter-session programs in January. (Smith Deck ¶ 7.) They also often took a smaller group of students to Cuba for a three-week course in June. (Id.) He states that they “would have continued those short programs, indeed, were already discussing the different possible focuses of the program for January 2005 at the time of the OFAC rule change,” but that they “were directly prevented from doing so by the 2004 amendment....” (Id. ¶ 9.) As for Wakefield, plaintiffs’ first amended complaint avers that “[t]o deepen and refine her understanding of [U.S.-Cuba relations] she wishes to take an inter-sessional Johns Hopkins’ course of two weeks duration in Cuba,” and that she “has been informed by Professor Smith, in his capacity as Director of Johns Hopkins’ Cuban Exchange Program, that Johns Hopkins’ inter-ses-sional courses will resume immediately upon the rescission of the OFAC rulemak-ing challenged in this case.” (1st Am. CompU 9.) The complaint also states that Wakefield has “been informed by plaintiff Smith that she has been accepted for enrollment in the first such resumed course.” (Id.) While their claims present a close case as to standing, on balance the Court concludes that plaintiffs have the better argument that their concrete and definite statements of future plans elevate their claims beyond the realm of hypothetiсal intentions and suffice to support a finding of injury-in-fact. 5
B. Redressability
The entities that are directly regulated by the 2004 amendments — U.S. academic institutions that have conducted educational programs in Cuba — are not parties to this action. When a plaintiff is
Several recent opinions of the D.C. Circuit have examined the redressability requirement. For instance, in
National Wrestling Coaches,
organizations representing men’s college wrestling coaches, athletes, and alumni challenged a regulation interpreting Title IX issued by the Department of Education. The regulation required universities to provide intercollegiate athletic opportunities to male and female students in numbers proportionate to their respective enrollments.
Similarly, in
Renal Physicians Ass’n v. Department of Health & Human Services,
No. 06-5133,
The crucial inquiry in both of these cases was whether plaintiffs’ evidence was too speculative. In contrast, plaintiffs here have submitted several declarations that directly address the issue of redressa-bility: Gilbert Merkx, the Development Director for International Studies at Duke University, declares that Duke cancelled its academic programs in Cuba as a result of “OFAC’s actions,” and if those actions were overturned, Duke would rеinstate its programs in Cuba. (Merkx Deck ¶ 3.) This same claim is made by Helen Stellmaker, the Coordinator of Program Advising and Student Activities in the International and Off-Campus Studies Office at St. Olaf Collage, and by Nancy Zingale, a Political Science Professor at the University of St. Thomas. (Stellmaker Deck ¶ 3; Zingale Deck ¶ 4.) Plaintiffs also have submitted a letter from Steven Knapp, Provost and Senior Vice President for Academic Affairs at Johns Hopkins, to the Director of OF AC, which notes that the 2004 OFAC regulations “effectively terminate” Johns Hopkins short-term academic programs in Cuba, and asks the agency to reconsider the regulations so that Johns Hopkins may “continue offering [the] educationally valuable and nationally important program.” (Ex. 1 to Pis.’ Surreply [Knapp letter];
see also
Gonzales Deck ¶ 6 (stating that “the restrictions implemented by the Bush administration forced the cancellation of [Johns Hopkins’ Cuban] academic exchange activities,” and “[a]s a result, ... the doors of access [to] ... programs in Cuba have remained shut”).) These factual statements and “their logic,” which fairly support an inference that Johns Hopkins and other universities would reinstate their Cuban academic programs were the Court to repeal the 2004 amendments, allow plaintiffs to avoid the mere “unadorned speculation” that the D.C. Circuit found to be fatal in
National Wrestling Coaches
and
Renal Physicians Ass’n. Nat’l Wrestling Coaches,
Furthermore, in both
National Wrestling Coaches
and
Renal Physicians Ass’n
there was evidence that the harm plaintiffs complained of would not necessarily be abated in the absence of the challenged regulations. In
Renal Physicians Ass’n,
even if the safe harbor provisions were invalidated, the facilities would still need to ensure that they paid no more than fair market value for physician referrals, and the safe harbor provision had already identified a simple method of doing so that was acceptable to the regulating agency.
Renal Physicians Ass’n,
In sum, the Court finds that plaintiffs have alleged “facts from which it reasonably could be inferred that, absent the [challenged policy], there is a substantial probability that ... if the court affords the relief requested, the asserted [injury] will be removed.”
Warth,
II. First Amendment
Plaintiffs argue that the “amendments to 31 C.F.R. § 515.565 violate plaintiffs’ rights of academic freedom and association as guaranteed by the First Amendment because they dictate, directly and indirectly, to the faeulties[ ] and students of United States colleges and universities who may teach, who may attend, what may be taught and how it should be taught.” (1st Am.Compl.H 34.) Plaintiffs further argue that the “First Amendment right to academic freedom simply cannot be curtailed for so-called foreign policy considerations, at least not without ... a demonstration ... that such curtailment was ‘supported by the weightiest considerаtions of national security.’ ” (Pls.’ Opp’n at 44 (quoting
Zemel v. Rusk,
“The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.... Government regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’ ”
Ward v. Rock Against Racism,
The Supreme Court has made it clear that when it has spoken “of ‘academic freedom’ and the right to determine on ‘acаdemic grounds who may teach,’ the Court was speaking in reaction to content-based regulation,”
Univ. of Pa. v. EEOC,
Moreover, plaintiffs’ argument that any infringement on their First Amendment right to academic freedom must be “supported by the weightiest considerations of national security” is simply incorrect. (Pis.’ Opp’n at 44.) The proper standard under which to evaluate content-neutral restrictions that incidentally burden speech is the intermediate scrutiny test announced in
United States v. O’Brien,
Indeed, similar content-neutral restrictions on travel to Cuba and other countries have consistently been upheld in the face of First Amendment challenges.
See, e.g., Zemel,
III. Fifth Amendment
Plaintiffs also assert that the “amendments to 31 C.F.R. § 515.565 restrict and burden plaintiffs’ Fifth Amendment liberty interest in organizing, teaching and participating in educational programs conducted abroad by United States institutions of higher learning.” (1st Am.ComplA 36.) The Fifth Amendment, they argue, guarantees a right to international travel which cannot be infringed absent justification by a “eonvincing[ ] ... national security threat.” (Pis.’ Opp’n at 43; Pis.’ Surreply at 9.) This argument is simply wrong.
The Supreme Court has indeed recognized a right to travel protected by the Constitution,
see, e.g., Saenz v. Roe,
Just as in the First Amendment context, restrictions on travel to Cuba and other countries have repeatedly been upheld in the face of Fifth Amendment challenges. In
Regan v. Wald,
Plaintiffs incorrectly argue that the Supreme Court’s decisions upholding travel restrictions in both
Zemel
and
Regan
were premised on the demonstration of “ ‘weighty concerns’ of foreign policy that rest on national security considerations.” (Pis.’ Surreply at 10.) The
Regan
Court, however, explicitly rejected the notion that “only a Cuban missile crisis in the offing w[ould] make area restrictions on international travel constitutional” and confirmed that the holding in
Zemel
“was not tied to the Court’s independent foreign policy analysis.”
Regan,
Because the government has advanced an “important” and “substantial” reason for the CARC educational travel restrictions
(i.e.,
the denial of U.S. currency to the Castro government),
Walsh,
IV. Administrative Procedures Act
Lastly, plaintiffs challenge the 2004 amendments to § 515.565 under the APA. Because OFAC is the agency charged with administering the CACR under TWEA,
see
31 C.F.R. § 515.802, “a challenge to its interpretation must either demonstrate that the statute clearly forbids the agency’s interpretation or that the interpretation is unreasonable.”
Consarc Corp. v. U.S. Treasury Dep’t,
First, it is clear that the regulations at issue are not foreclosed by the FTIA or the TSRA. The TSRA prohibits the Secretary of the Treasury from authorizing “travel-related transactions” with Cuba “for tourist activities.” 22 U.S.C. § 7209(b)(1). The regulations interpreting the statute exclude “[educational activities” from the definition of “tourist activities” under the TSRA,
see
31 C.F.R. § 515.560, but that exclusion does
not
lead to the conclusion that OFAC may never restrict education-related travel to Cuba. As for the FTIA, which amended TWEA to restrict the President’s authority to regulate the import and expоrt of certain informational materials such as films and graphs,
see
50 U.S.C.App. § 5(b)(4), plaintiffs point to Congress’s prefatory language, which stated that: “It is the sense of the Congress that the President should not restrict travel or exchanges for informational, educational, religious, cultural, or humanitarian purposes or for public performances or exhibitions, between the United States and any other country.” Pub.L. No. 103-236 § 525(a).
(See
Pis.’ Opp’n at 15, 41.) Courts have repeatedly held that such “sense of Congress” language is merely precatory and non-binding.
See, e.g., Yang v. Cal. Dep’t of Soc. Servs.,
Because Congress “has [not] directly spoken to the precise question at issue,” OFAC’s regulation is entitled to the full measure of deference set forth in
Chevron,
Plaintiffs lament that the conclusions reached by the Commission were “conclu-sory” and influenced by “electoral concerns.” (Pis.’ Opp’n at 9-12; 15.) However, plaintiffs’ disagreement with the Commission’s findings and recommendations does not cause OFAC’s reliance on them to be arbitrary and capricious. Plaintiffs also argue that the CACR’s restrictions on academic travel are “non-economic” in nature, and therefore that they are not rationally related to TWEA, which “has a purely economic purpose.” (1st Am. Comply 31.) It is clear, however, that such restrictions on travel are unquestionably economic regulations.
See Walsh,
In short, OFAC’s interpretation of TWEA set forth in the 2004 amendments to the CACR is not arbitrary or capricious and must be upheld under Chevron as a reasonable interpretation of the statute. 10 Accordingly, plaintiffs’ APA challenge cannot survive.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is granted, and plaintiffs’ claims are dismissed with prejudice. A
Notes
. Plaintiffs have failed to provide any information regarding whether plaintiffs Ahmad and Kamen actually graduated in 2007, as was expected. If they did, they would no
. Abby Wakefield was added as a plaintiff in an Amended Complaint filed on July 10, 2007. Defendants subsequently filed a second Motion to Dismiss [Dkt. # 22] addressing Wake-field's claims.
. If Kamen and Ahmad indeed graduated on schedule this past spring and are no longer undergraduate students at Johns Hopkins, their claims would be moot. However, because the Court finds that they do not have standing to bring these claims, it need not address this issue.
. The Court also notes that the CACR regulations do not foreclose all opportunities for U.S. students to study in Cuba, even if their college or university no longer offers courses there. Students are permitted to participate "in a formal сourse of study at a Cuban academic institution, provided the formal course of study in Cuba will be accepted for credit toward the student’s undergraduate degree ... and provided the course of study is no shorter than 10 weeks in duration.” 31 C.F.R. § 515.565(a)(3). Plaintiffs argue, however, that this option is "unrealistic” for most students. (Pis.' Opp’n at 24.)
. Defendants argue that Smith is unable to demonstrate the requisite injury-in-fact since he is not a full-time permanent professor at Johns Hopkins, and thus he was not permitted to teach in Cuba prior to the 2004 amendments and would not be permitted to teach there even if the 2004 amendments were repealed. (Defs.' Reply at 1-2.) The parties dispute whether teachers of Cuba programs had to be full-time employees prior to the 2004 amendments. Defendants explain that the pre-2004 regulations clearly required teachers of programs in Cuba to be full-time employees, but that requirement "had been somewhat obscured by the paragraph structuring in the previous version of the regulation” (Defs.' Reply at 2 n. 2), and the 2004 amendments merely sought to "clarify” that preexisting requirement. (Defs.' Mem. at 11.) However, on the facts before the Court, it is clear that Johns Hopkins had a license to conduct short-term programs, and that Smith was regularly leaching courses in Cuba. It is therefore arguably a fair inference that if the regulations were returned to the status quo ante, he would be able to do so again. The Court therefore need not decide this nebulous question of whether part-time professors were permitted to teach in Cuba under the pre-2004 CACR.
. Defendants also argue that plaintiffs seek to assert the rights of the universities, rather than their own rights, and that their claims must therefore be dismissed under the prudential limitations to third-party standing. However, plaintiffs Smith and Wakefield have еach alleged a sufficient injury-in-fact, and the Court is satisfied that these plaintiffs are asserting injuries to their own rights and not "restfing] [their] claim[s] to relief on the legal rights or interests of third parties.”
See Warth,
. The other cases relied on by plaintiffs to support their academic freedom claims are also distinguishable because the challenged government actions at issue were not content and/or viewpoint neutral.
See Wieman v. Updegraff,
. Plaintiffs rely exclusively on two cases to support their Fifth Amendment claims,
Kent
v.
Dulles,
. If Congress had wished to repeal the Executive’s authority to restrict travel under TWEA, it could have done so explicitly. The FTIA amended not only TWEA, but also simultaneously amended the International Emergency Economic Powers Act ('TEEPA”), 50 U.S.C. § 1702(b). With respect to IEEPA, Congress did explicitly restrict the President’s authority to regulate transactions “ordinarily incident to travel.” Pub.L. No. 103-236 § 525(c)(1). The corresponding House of Representativеs Conference Report confirmed that “[b]ecause the embargoes on Cuba and North Korea are imposed not under IEEPA but under TWEA, this change would ... not apply to either of those embargoes.” H.R. Conf. Rep. 103-482, at 240, reprinted in 1994 U.S.C.C.A.N. 398, 483.
. Though the application of
Chevron
deference alone is sufficient to uphold the regulations, it should also be noted that the regulations at issue here are entitled to an even greater measure of deference because they relate to the exercise of the Executive’s authority in the realm of foreign affairs.
See, e.g., Jama v. Immigration & Customs Enforcement,